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K.L. Kuttayan Chettiar and ors. Vs. K.V.R. Surendranathachary and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1982)2MLJ443
AppellantK.L. Kuttayan Chettiar and ors.
RespondentK.V.R. Surendranathachary and ors.
Cases ReferredSee Steward v. The North Metropolitan Tramways Co.
Excerpt:
- - there may be cases like the present one where the parties are at issue on the question whether the defendants are agriculturists. referring to the background of the legislative history the learned judge observed that what was intended was only a temporary ban to give a breathing time to agriculturists in order that they may be better enabled to discharge their obligations without any financial embarrassment or difficulty. but according to well-known canons of construction courts are bound to apply the section as it exists without making any variations, even if such application nullifies the purpose for which the act was enacted. the object was no more than to give a breathing time to agriculturists in order that they may be the better enabled to discharge their obligations without.....orderr. sengottuvelan, j.1. the above civil revision petitions and the civil miscellaneous appeal had been referred to this bench by the order of his lordship, the officiating chief justice, for an authoritative pronouncement on the question whether a suit instituted during the period of moratorium, during which period the institution of suits are prohibited by the provisions of act xv of 1976, is to be dismissed as not maintainable or stayed till the expiry of the period during which the moratorium subsists. the above reference is necessitated in view of the conflict of decisions of this court, one set of decisions taking the view that the suit must be dismissed and the another set of decisions, laying down that such suits ought to be stayed till the moratorium period is over.2. before.....
Judgment:
ORDER

R. Sengottuvelan, J.

1. The above civil revision petitions and the civil miscellaneous appeal had been referred to this Bench by the order of His Lordship, the Officiating Chief Justice, for an authoritative pronouncement on the question whether a suit instituted during the period of moratorium, during which period the institution of suits are prohibited by the provisions of Act XV of 1976, is to be dismissed as not maintainable or stayed till the expiry of the period during which the moratorium subsists. The above reference is necessitated in view of the conflict of decisions of this Court, one set of decisions taking the view that the suit must be dismissed and the another set of decisions, laying down that such suits ought to be stayed till the moratorium period is over.

2. Before referring to the conflicting decisions on this question it will be useful to set out the relevant sections of Act XV of 1976. Section 2(b) defines 'agriculturist' and the same is as follows:

2(b). 'agriculturist' means a person who owns an interest in agricultural land, and who, by reason of such interest, is in possession of such land or is in receipt of the rents or profits thereof and shall include a lessee; but shall not include-

(i) a firm registered under the Indian Partnership Act, 1932, or a company as defined in the Companies Act, 1956, or a corporation formed in pursuance of an Act of Parliament of the United Kingdom or of any special Indian Law, or

(ii) any person who was assessed to income-tax under the Income-tax Act, 1961, or to agricultural income-tax under the Tamil Nadu Agricultural Income-tax Act, 1955, or to sales tax under the Tamil Nadu General Saks Tax Act, 1959 or under the Central Sales Tax Act, 1956, in any of the years 1971-72, 1972-73, 1973-74 and 1974-75.

Section 2(c) defines 'debt' and the same reads as follows:

2(c). 'Debt'-

(i) means any sum of money which a person is liable to pay under a contract (express or implied) for consideration received; and

(ii) includes rent in cash or kind which a person is liable to pay or deliver in respect of the lawful use and occupation of agricultural land.

Section 3 of Act XV of 1976 which bars the suits and applications against the agriculturist for the recovery of a debt is as follows:

3. Bar of suits and applications.--No suit for the recovery of a debt shall be instituted, no application for the execution of a decree for payment of money passed in a suit for the recovery of a debt shall be made, and no suit or application for the eviction of a tenant on the ground of non-payment of a debt, shall be instituted or made, against any agriculturist in any civil or revenue Court on and from the date, of commencement of this Act and before the expiry of two years and six months from the said date.

Section 4 of Act XV of 1976 relates to pending proceedings at the time of commencement of Act XV of 1976, which according to the Act will have to be stayed. Section 4 reads as follows:

4. Stay of Proceedings.--(1) All further proceedings in suits and applications of the nature mentioned in Section 3 in which relief is claimed against an agriculturist, not Toeing proceedings for the amendment of pleadings or for the addition, substitution or the striking off of parties, but otherwise inclusive of proceedings consequent on orders or decrees made in appeals, revision petitions, or applications for review, shall, subject to the next succeeding sub-section, stand stayed until the expiry of two years and six months from the date of commencement of this Act:..

(2) On application made by the defendant or the respondent or by all the defendants or all the respondents, as the case may be, the stay effected by Sub-section (1) in a suit or application shall be dissolved and the suit or application shall be proceeded with from the stage which had been reached when further proceedings in the suit or the application were stayed.

According to Section 3 of Act XV of 1976 quoted above no suit for the recovery of a debt can be instituted1 and no application for the execution of decree for payment of money passed in a suit for the recovery of a debt shall be made against any agriculturist in any civil or revenue Court from the date of commencement of the Act before the expiry of two years and six months from the said date. Originally such bar on the institution of suit or application for execution of a decree was for one year from the commencement of the said Act which was subsequently extended by the subsequent enactments. The total period during which the institution of suits or applications has been stayed as per the above enactments is two years and six months, i.e., from 15th January, 1976 to 15th July, 1978. The conflict of view can now be briefly noted.

3. In Sri Hari Babu Naidu v. S. Alamelu Ammal : (1980)2MLJ115 , Ratnam, J., following an earlier ruling of Mohan, J., in C.R.P. No. 1806 of 1976, dated 8th July, 1977 (un-reported) came to the conclusion that any suit instituted after the commencement of Act XV of 1976 cannot be dismissed but will have to be stayed till the moratorium prescribed under the Act comes to an end. This view has been subsequently agreed to by Balasubrahmanyan, J., in the case reported in Smt. M.K. Srimathi Ammal v. P. Chellammal and Anr. : (1981)1MLJ315 .

4. But in Sarada Ammal v. V.S.M. Veerappa Chettiar (1975) T.L.N.J. 75, Ismail, J., as he then was, held that a suit instituted subsequent to the coming into force, of the aforesaid Act XV of 1976, will have to be dismissed following an earlier decision of Rajagopalan, J., in R.M.M. Ramanathan Chettiar v. Ramaswami Pillai and Anr. : (1957)2MLJ267 .

5. Before proceeding to discuss the cases that arise under Act XV of 1975, it will be useful to refer to certain earlier decisions under other enactments with a similar provision. The first case is a decision of Rajagopala Ayyangar, J., in Palanichami Chettiar and Ors. v. The Reliance Bank of India Ltd., Madras through its Secretary (1956) 2 M.L.J. 1 : (1965) 69 L.W. 440, under the provisions of Madras Agriculturists' (Indebtedness) Temporary Relief Act (V of 1954), where a provision similar to the one contained in Section 3 of Act XV of 1976 existed. In that case an application for rateable distribution was filed against an agriculturist contravening Section 3 of Madras Act V of 1954 according to which no application for execution of a decree for payment of money passed against an agriculturist can be filed. Negativing the argument of the petitioner in that, case, that the intention of the Legislature is to give temporary relief to the agriculturists and hence the ends of justice will be met by ordering the stay of proceedings instead of dismissing the same, Rajagopala Ayyangar, J., observed as follows:

The reasoning however, by which the learned District Munsif got over the effect of the words in Section 3 was by resort to a speculation as to the purpose for which the Madras Act V of 1954 was passed. No doubt if the language used in the operative portion of a provision is ambiguous and is capable of more than one construction, the purpose of the enactment and the mischief it sought to remedy might legitimately be referred to decide which of the two alternative constructions could be adopted. But when the language used is clear, Courts have to give effect to them and cannot cut down their scope by reference to the presumed intentions of the Legislature.

The next case on the point is the one reported in R.M.M. Ramanathan Chettiar v. Ramaswami Pillai and Anr. : (1957)2MLJ267 , a case arising under the same Section 3 of Act V of 1954, Where Rajagopalan, J., upholding the dismissal of a suit filed in contravention of Section 3 of Act V of 1954 observed as follows:

The first contention of the learned Counsel for the petitioner was that the learned Subordinate Judge had no jurisdiction to dismiss the suit, even if the institution of the suit was in contravention of the statutory ban imposed by Section 3 of Act V of 1954. It is true there was no provision in Act V of 1954, analogous to Section 3(2) of the Madras Indebted Agriculturists Repayment of Debts Act (I of 1955). Nonetheless, I am unable to accept the contention of the learned Counsel for the petitioner, that where a suit was instituted in contravention of Section 3 of Act V of 1954, the Court in which such a suit was instituted had no option but to keep it pending, and it is not liable to be dismissed. A claim which contravened an express statutory provision could only be dismissed. That the express statutory provision in this case was really one governing the procedure made no difference to the principle to apply. For example a claim barred by the law of limitation can only be dismissed.

The next case on this question is a Full Bench decision of the Kerala High Court in Alikutty Sahib v. Cherian and Ors. : AIR1961Ker138 (F.B.), where the Full Bench considered a similar case arising under Section 3 of the Madras Act (V of 1954). The reference to the Full Bench was made by a Division Bench of the Kerala High Court while considering an appeal against the Judgment of Sankaran, J., holding that Section 3 was not an absolute prohibition against the institution of suit against the agriculturists and that such suit has to be stayed under Section 4 of Act V of 1954, if the plaintiff had instituted such suit in the bona fide belief that, the defendants are not agriculturists. The Full Bench negativing the view taken by the single Judge observed as follows:

We are unable to uphold this view. What Section 3 provides is that 'no suit fox the recovery of a debt shall be instituted....' This in our opinion is an absolute; embargo on the institution of a suit for recovery of a debt from an agriculturist. Sankaran, J., has pointed out that the plaint can be rejected under Rule 11 of Order 7 of the Code of Civil Procedure, only when the suit appears from the statement in the plaint to be barred by any law.

Apart from the rejection of a plaint under Order 7, the Court has jurisdiction to dismiss the suit if it comes to the conclusion that there is a bar to the institution of the, suit. There may be cases like the present one where the parties are at issue on the question whether the defendants are agriculturists. In such a case the Court is bound to try the issue and if it finds that the defendants are agriculturists, it has jurisdiction to dismiss the suit.

Coming to the second ground that there is no provision in the Act for the dismissal of the suit filed in contravention of Section 3, we may point out that when the bar to the institution of such a suit is absolute, an express provision in the statute for dismissal of the suit is unnecessary.

As regards the last ground viz., that Section 4 (providing for stay of proceedings instituted prior to the commencement of the Act) is wide, enough to cover a suit instituted in contravention of Section 3 we are of opinion that Section 4 relates to suits which were instituted earlier and were pending on the date this Act came into force. The first clause of Section 4 makes this clear. It refers to all further proceedings in suits and applications of the nature mentioned in Section 3. Section 4 thus contemplates 'further proceedings' after the commencement of the Act.

In referring to suits and applications, the provisions is 'suits and applications of the nature mentioned in Section 3 and not suits and applications instituted or made in contravention of Section 3. Section 4 does not therefore justify the conclusion that it applies to suits instituted after Act (V of 1954), came into force. We may in this connection observe that the conclusion reached by us is in consonance with the decision of the Madras High Court in Palanichami Chettiar v. Reliance Bank of India Limited (1956) 2 M.L.J. 1 : 69 L.W. 440, which Sankaran, J., declined to follow. In our opinion Bhadsha Stores v. P.V.K. Govindan Kutty : AIR1957Ker41 , does not lay down the law correctly.

Thus the Full Bench came to the conclusion that the dismissal of the suit by the trial Judge was proper. In a subsequent case reported in Sarada Ammal v. S.M. Veerappa Chettiar (1978) T.L.N.J. 75, arising under Section 3 of Act (XV of 1976), Ismail, J., as he then was, following the decision of Rajagopalan, J., reported in R.M.M. Ramanathan Chettiar v. Ramaswami Pillai and Anr. : (1957)2MLJ267 , came to the conclusion that the dismissal of the suit instituted in contravention of Section 3 of Act (XV of 1976) is correct.

The reasons given by Ratnam, J., in Sri Hari Babu Naidu v. S. Alamelu Ammal : (1980)2MLJ115 , in sup port of his conclusion that the suit instituted in contravention of Section 3 of Act (XV of 1976)....

will have to be stayed and not dismissed are as follows:

1. The controversy has to be resolved not on a priori reasoning but by reference to the avowed objects of the Act, the history of the legislation and the general scheme of the Act. It would be incongruous to hold that the legislature intended that the suits for recovery of debts which were pending against agriculturists at the commencement of the Act should be proceeded with after the expiration of two years and six months, but at the same time entertained a different intention to the effect that similar suits instituted during the period of moratorium must nevertheless bb dismissed even though the period of two years and six months had expired.

2. Section 3 of Act XV of 1976 does not impose a ban on the jurisdiction of tine Court and it only bars the institution of the suit for a short white.

3. Act XV of 1976 nowhere expressly says that the suits should be dismissed for contravening Section 3.

6. The above said views of the learned Judge will have to be examined in the light of judicial opinion available on the question.

7. The first reasoning is that Act (XV of 1976) is intended as temporary relief to agriculturists, that the intention of the legislature is not to wipe out the debts but only to postpone the recovery of the same and that the entire provisions of the Act will have to be viewed in that light. Referring to the background of the legislative history the learned Judge observed that what was intended was only a temporary ban to give a breathing time to agriculturists in order that they may be better enabled to discharge their obligations without any financial embarrassment or difficulty. The evolution of the statute would have taken a different course if the idea had been either to destroy the remedy or to wipe out the debt itself. The Act was obviously designed to impose a moratorium against recovery of debts from agriculturists by Court process. Section 3 achieved this objective by imposing a temporary bar against the institution of suits and other proceedings. Section 4 related to pending proceedings which will have to be stayed for the duration of the same period covered under Section 3. The necessary implication of enjoining this stay of a limited duration is that once the period is expired, the stay would also got automatically vacated. In reality the result of Section 4 on pending proceedings was that the Courts would have to adjourn the hearing. But once the period under Sections 3 and 4 expired there was no bar to the Court taking up the proceedings from where they were left off. When this is the effect of Section 4 with reference to pending suits against agriculturists the position would not possibly have been conceived to be different when Section 3 happened to be enacted in the same statute to sub-serve the same legislative object. It would be incongruous to hold that the legislature intended that suits for recovery of debts which were pending against agriculturists at the commencement of the Act should be proceeded with after the expiration of two years and six months, but at the same time entertained a different intention to the effect that similar suits instituted during the period of the moratorium must nevertheless be dismissed.

8. In short the reasoning of the learned Judge on the question is that whatever may be the wording of Section 3, in applying that provision we must go by the intention of the legislature rather than the actual wording of the section. But according to well-known canons of construction Courts are bound to apply the section as it exists without making any variations, even if such application nullifies the purpose for which the Act was enacted. The Court can go into the intention of the legislature only in cases where there is ambiguity in the wording of the section. If the language employed in the section is plain, precise and unambiguous, the proper construction of the section is primarily to be sought in the words used in the statute itself rather than from any notions which may be entertained by the Court as to what is just and reasonable or expedient, based upon the presumed intentions of the legislature not, however, declared. The literal construction of the statute is the primary rule. The classical statement of Lord Watson is Salomon v. Salomaon and Co. (1897) A.C. 22 , is as follows:

'Intention of the Legislature' is a common but very slippery phrase, which popularly understood may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been am omission to enact, it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication. After expounding the enactment, it only remains to enforce it, notwithstanding that it may be a very generally received opinion that it does not produce the effect which the Legislature intended or might with advantage be modified.

On a plain construction of Section 3 no suit can be instituted after the commencement of Act. This necessarily leads to the conclusion that such suit instituted after the commencement of the Act cannot remain on the file of the Court. We cannot nullify the provision in Section 3 of Act (XV of 1976) laying down that no suit shall be instituted after the commencement of Act (XV of 1976) by speculating on the intention of the legislature. In our view the reasoning of the learned Judge on this aspect cannot be supported.

9. With regard to the second reasoning, Ratnam, J., refers to the legislative history which according to him emphasises two important features of Section 3. One is that the bar is to act only as a temporary moratorium. Every time the question was mooted or reviewed, the concerned legislature or other lawmaking authority only tended to reiterate and re-emphasise the temporary operation of the bar, although on every occasion the duration of the bar was being enlarged little by little. The other feature which emerges from the succession of Ordinances and legislative enactments on the subject relates to the avowed object of the Act. The object was no more than to give a breathing time to agriculturists in order that they may be the better enabled to discharge their obligations without any financial embarrassment or difficulty. The basic conception which underlines both Sections 3 and 4 is the same and this scheme of the Act is further underlined by the avowed object of the Act. A reference was also made by the learned Judge to Section 5 which protects persons who bona fide believed that Section 3 applied to their suit claims and in that belief refrained from instituting their suits within time. In case where the Court held that a suit had been instituted in contravention of the bar under Section 3 of Act (XV of 1976) there is nothing in the Act to suggest that the Court could not get on with the trial of the suit on other issues, seeing that the section no longer presents any obstacle to such a course. In such a situation, the effect of the Court's finding on the preliminary issue would be only to declare, ex post facto, that the institution is bad. It cannot undo the institution, for, what is instituted and the suit being on file is a fact which the Court cannot shut its eyes to. Section 3 of Act (XV of 1976) does not impose a bar on the jurisdiction of the Court. It only bars the institution of the suit for a short while; and if the period is over, there is no obstacle to the Court getting on with the suit.

10. The learned Judge also quoted with approval the unreported decision of Mohan, J., in C.R.P. No. 1806 of 1976, dated 8th July, 1977, where Mohan, J., upheld the action of the trial Court holding that the Ordinance did not bar the jurisdiction of the Court, but only disabled the matter from being proceeded with for the duration of the period provided for in the Ordinance. Of the reported decisions expressing the contrary view, it is seen only the decision of Rajagopalan, J., in R.M.M. Ramanathan Chettiar v. Ramaswami Pillai and Anr. : (1957)2MLJ267 , seems to have been brought to the notice of the learned Judge. The learned Judge distinguished the above decision on the following reasoning:

11. Technically, that decision is not binding because the present cases arises under a different statute. The section may be in pari materia, but that does not make the decision under a different Act a binding precedent.

12. Referring to the analogy drawn, by Rajagopalan, J., with reference to the provision of Limitation Act, which provides for the dismissal of the suit filed after the period prescribed the learned Judge observed that the Limitation Act is a permanent measure whereas Act XV of 1976 is a temporary measure and the question therefore will have to be decided bearing in mind the temporary nature of the enactment and the intention of the legislature.

13. In the opinion of Ratnam, J., to dismiss a suit because its institution is in contravention to Section 3, is to misunderstand the object of the Act and to misconstrue, and misapply its provisions and thereby the Court will not only be infusing permanent life into a temporary legislative measure, but also make the Act a weapon of destruction of creditor's right to recover a debt, when the Act is intended only as a temporary postponement of judicial process for the recovery of a dent.

14. Balasubrahmanyan, J., adopted the reasoning of Ratnam, J., in toto in coming to a similar conclusion in Smt. M.K. Srimathi Ammal v. P. Chellammal and Anr. : (1982)1MLJ315 .

15. The view expressed by Ratnam, J., based upon the presumed intention of the legislature that there cannot be one rule for the suits instituted before the commencement of Act XV of 1976 and another rule for the suits instituted after the commencement of the Act does not find support in the provisions of the Act. As per Section 4 of Act XV of 1976 all the proceedings pending at the commencement of the Act will have to be stayed for the period prescribed under the Act. As per Section 3 of Act XV of 1976 no proceedings shall be instituted against any agriculturist for recovery of a debt. Thus the Act has made distinct and separate provisions with reference to the suits instituted after the commencement of the Act and the suits pending at the time of commencement of the Act. A reading of Sections 3 and 4 clearly indicates the intention of the legislature as to what is to be done in respect of pending suits and in respect of suits to be instituted thereafter. We cannot relying upon the provision made in respect of suits pending at the time of commencement of the Act water down the prohibition for filing suits after the commencement of the Act. The learned Judge observed that on the date when the suit was taken up for trial the prohibition is not there since the, moratorium period had come to an end and there is nothing to warrant the dismissal of the suit. But to take such view is forget the fact that the very institution of the suit itself is prohibited and that the suit which was instituted in contravention of such prohibition cannot become validly instituted on the expiry of the moratorium under the provisions of Act XV of 1976. In the case of a suit which was not properly instituted initially the defect in the institution of the suit cannot be cured by subsequent events. In this connection the learned Judge also referred to the absence of prohibition in the Act in entertaining a suit by the office itself and from the absence of a machinery to that effect, the learned Judge observed, that when once a suit is instituted there cannot be a subsequent dismissal. The question whether the defendant is an agriculturist as defined under Act XV of 1976, is a matter for decision of the Court and hence only on such decision whether the institution of a suit is proper or not can be ascertained. In a case like this there cannot be a provision for receiving the plaint by the administrative section of the Court since there can be a dispute with reference to the question whether the defendant is an agriculturist as defined under the Act or not. Hence only on a decision on the preliminary issue the question whether the institution of the suit is proper or not can be decided. Hence the reasoning of Ratnam, J., that the suits instituted are to be stayed and cannot be dismissed subsequently does not appear to be correct.

16. The learned Judge's reasoning that the conclusion on this question, must depend more on the intention of the, legislature than on the a priori reasoning of the Courts on similar enactments also does not appear to be correct. The intention of the legislature can be gone into only when there is any ambiguity in the wording of the Section1. A priori reasoning of Courts in interpreting similar enactments serves as a guidance and the same is of great value and can be departed from only on justifiable grounds.

17. The third reasoning of the learned Judge that though the filing of a suit is quite contrary to the Act it cannot be dismissed since there is no express provision for the dismissal of such a suit does not appear to be correct. As observed by the Full Bench of the Kerala High Court in Alikutty Sahib v. Cherian and Ors. : AIR1961Ker138 , the expression that 'no suit for the recovery of a debt shall be instituted...'is an absolute embargo on the institution of a suit for recovery of a debt from an agriculturist and the Court has jurisdiction to dismiss it if it comes to a conclusion that the bar to the, institution of the suit is attracted. There may be cases where the parties are at issue on, the question whether the defendants are agriculturists. In such a case the Court is bound to try the issue and if it finds that the defendants are agriculturists, it has jurisdiction to dismiss the suit. When the bar to the institution of the suit is absolute an express provision in the statute for dismissal of the suit is unnecessary. This decision of the Full Bench of the Kerala High Court had not been noted by the learned Judge. We are inclined to adopt the view expressed by the Full Bench and the decisions of Rajagopala Iyengar, J. Rajagopalan, J. and Ismail, J., referred to above, and hold that the bar to the institution of the suit under Section 3 is absolute and an express provision in the Act for the dismissal of such a suit is unnecessary.

18. In view of the conclusion arrived at on the above three points we disagree with the views expressed by Mohan, J., in C.R.P. No. 1806 of 1976, data 8th July, 1977 (unreported), Ratnam, J., in Sri Hari Babu Naidu v. S. Alamelu Ammal : (1980)2MLJ115 , and of Balasubrahmanyan, J., in Smt. M.K. Srimathi Ammal v. P. Chellammal and Anr. : (1982)1MLJ315 , and hold agreeing with the view expressed by the Full Bench of the Kerala High Court in Alikutty Sahib v. Cherian and Ors. : AIR1961Ker138 , Rajagopala Ayyangar, J., in Palanichami Chettiar and Ors. v. The Reliance Bank of India Ltd., Madras through its Secretary (1956) 2 M.L.J. 1 : 69 L.W. 440, Rajagopalan, J., in R.M.M. Ramanathan Chettiar v. Ramaswami Pillai and Anr. : (1957)2MLJ267 , and Ismail, J., in Saradam Ammal v. V.S.M. Veerappa Chettiar (1978) T.L.N.J. 75, that a suit instituted against any agriculturist contrary to the provisions contained in Section 3 of Act XV of 1976 is not maintainable in view of the express provision in Section 3 of Act XV of 1976, and the same is liable to be dismissed.

19. The moratorium period under Act XV of 1976 came to an end on 15th July, 1978. In all the above said three matters the proceedings were instituted during the period in which the moratorium subsisted and when the matter came up for enquiry before the Courts below the moratorium had spent itself out and on the date of enquiry there was no prohibition for the institution of suits against the agriculturists. In this connection it is contended that as the subsequent events also will have to be taken into consideration in moulding reliefs, the suits filed can now be proceeded with. In the case reported in Rameshwar and Ors. v. Jot Ram and Ors. : [1976]1SCR847 , the Supreme Court observed as follows:

Courts of justice may, when the compeling equities of a case oblige them shape reliefs--and not rights--to make them justly relevant in the updated circumstances. Where the relief is discretionary, Courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. Venkateswarlu (supra), read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine see Chokalingam Chetty v. Seethai Achi . The law state in Ramji Lal v. The State of Punjab I.L.R. (1966) P.&H.; 125, is sound:

Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment. See Steward v. The North Metropolitan Tramways Co. (1885) 16 Q.B.D. 178 and a fresh suit by him would be so barred by limitation.

It is no doubt true that subsequent events can be taken into account to mould the relief claimed in a suit. But they cannot be taken to confer jurisdiction on a Court which it did not have on the date of the institution of the suit, unless there is retrospective legislation conferring such jurisdiction on the Court. Bearing this principle in mind and also the subsequent event, viz., the fact that the moratorium period under Act XV of 1976 came to an end and on the date of enquiry of these cases there was no bar in force, we feel that these are fit cases where the relief will have to be shaped in such a way which may not prejudicially affect the parties concerned. In one of the cases we find a very heavy court-fee had been paid. If the suit is dismissed the plaintiff will lose the benefit of court-fees paid on the plaint. To avoid such undue hardship the proper procedure will be to order the return of the plaint. It is argued that such return of plaint will deprive the parties of the plea of limitation. But in view of the fact that Section 14 of the Limitation Act provides for exclusion of time of proceedings conducted bona fide in a Court without jurisdiction and in view of the fact Section 5 of Act XV of 1976 protects the acts done in good faith, ordering the return of plaints cannot prejudice the defendants concerned in any way.

20. Another aspect to be considered is whether the present case can be brought under Order 7, Rule 10, which deals with the return of the plaint. Order 7, Rule 10 states that the plaint shall at any stage of the suit be returned for presentation to the proper Court. The question arises as to whether the power of the Court to return the plaint for want of territorial and pecuniary jurisdiction can be extended to cases where there is a bar to the institution of suits. Though plaints which cannot be entertained on account of such a bar cannot be brought strictly under Order 7, rule 10 yet under the inherent powers to meet the ends of justice, the Court has always an inherent jurisdiction under Section 151 to return the plaint which under law cannot be entertained by the Court. For instance if a plaint filed indicates that it is for the recovery of a debt due from an agriculturist the institution of which is barred under Section 3 of Act (XV of 1976), the proper order would be to return the plaint asking the party to explain as to how the suit is maintainable. It may be argued that in such cases the Court will have to reject the plaint and not return it. As already pointed out Section 5 provides for a case of a plaintiff bona fide believing the defendant to be an agriculturist and refraining from filing a suit. But there is no provision in the Act providing for a case of plaintiff bona fide believing the defendant not to be an agriculturist and filing a suit. In the latter case to meet the ends of justice, especially after the bar to entertain the suit has ceased to operate, the Court can direct the return of the plaint under Section 151 for representation in the same Court with a view to relieve the hardship that may be caused to the plaintiff because of their bona fide mistake. Under its inherent jurisdiction under Section 151 and the power available to the Court to shape the reliefs taking into account the subsequent events to meet the ends of justice as laid down by the Supreme Court decisions cited above, the proper and suitable order will be to return the plaint rather than to reject the same. There is also no prohibition to such a course in Order 7 of the Civil Procedure Code. Considering the entire circumstances we feel that the proper order to he passed in this case will be to order the return of the plaints.

21. C.R.P. No. 2515 of 1978 is filed by the plaintiffs against the order in I.A. No. 999 of 1977 on the file of the Subordinate Judge of Madurai. I.A. No. 999 of 1977 was filed by the defendants praying for the dismissal of the suits on the ground they are agriculturists. The defendants produced patta book Exhibit A-1 and kist receipts Exhibits A-2 to A-5. The suit is one for recovery of a heavy amount on the strength of a mortgage.

22. C.M.A. No. 175 of 1979 is filed by the defendant against the decision of the learned District Judge, Pudukkottai, rendered in A.S. No. 97 of 1978, The suit in O.S. No. 250 of 1977 is for the recovery of a sum of Rs. 6,000. After considering the effect of Section 3 of Act XV of 1976 and also taking note of the fact that moratorium came to an end, the learned District Judge, Pudukkottai, observed that the dismissal of the suit will undoubtedly cause prejudice to the plaintiff and with a view to avoid the multiplicity of suits set aside the decree passed by the trial Court and remanded the matter back to the trial Court for considering the other issues in accordance with law.

23. C.R.P. No. 288 of 1980 is filed by the plaintiff against the judgment of the learned Subordinate Judge of Devakottai in A.S. No. 12 of 1978 wherein the defendant claim ed the benefit of Act IV of 1938 and Act XV of 1976 and prayed for the dismissal of the suit. The defendant produced the patta book Exhibit A-1 and the kist receipt. The learned Subordinate Judge, Devakottai, accepted the contention of the defendant that he is an agriculturist, allowed the appeal and dismissed the suit.

24. In all the three matters there is evidence that the defendants are agriculturists and in none of the matters, it has been shown that the defendants are not entitled to the relief under Act XV of 1976 and hence the provisions of Act XV of 1976 is attracted in all these cases and! all the three matters will have to be disposed of in accordance with the provisions of Act XV of 1976.

25. In the result our answer to the question referred to us in that the suits instituted in contravention of Section 3 of Act (XV of 1976) are liable to be dismissed.

26. However, taking into consideration the subsequent events namely, the expiry of the moratorium, and the inherent power vested with the Courts to shape the reliefs to avoid undue hardship to the parties the proper order warranted by the special circumstances present in these eases will be to order the return of the plaints rather than dismissing them.

27. Hence we accordingly order the return of the plaints in all the three cases. With liberty to re-present the same within 2 weeks. There will be no order as to costs.


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